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The Hague Domestic Violence Project

By Sudha Shetty, Assistant Dean for Global Alliances

The Hague Domestic Violence Project is delighted to announce the release of the Practice Guide “Representing Battered Respondents under the Hague Convention on the Civil Aspects of International Child Abduction.” The guide will be made available nationally and will also be used by attorneys in Japan to represent battered mother respondents. This guide is intended to assist attorneys and domestic violence victim advocates representing battered mother respondents in the United States in cases filed under the Hague Convention on the Civil Aspects of International Child Abduction. Nationally and internationally, these mothers need legal representation, but the dearth of lawyers with the appropriate expertise made it clear that such a guide was needed. These mothers must be given access to justice to protect their children. They must not be treated as criminals.

The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”) is an international treaty intended to protect children by providing a civil legal framework for the return of children to their habitual residence when they are wrongfully removed or retained across international borders.  In the United States, the Hague Convention is implemented through federal law, specifically the International Child Abduction Remedies Act (ICARA).  ICARA establishes procedures to implement the Convention and its provisions are intended to be read in addition to the Convention, not in lieu of the Convention.   

If one parent removes or retains a child across international borders, the other parent – the “left-behind” parent – may file a petition under the Hague Convention for that child’s return. The court presiding over a Hague Convention case must then determine if the countries involved are Contracting States, whether the removal or retention was wrongful,  and, if it was wrongful, whether any exceptions to the Convention apply.

The purpose of the Hague Convention is to ensure prompt return of a child to his or her country of habitual residence, and legal proceedings under the Convention have developed and evolved in furtherance of that purpose.  The exceptions to returning a child, also referred to as affirmative defenses, were drafted to be narrowly construed, and courts in the United States have followed this line.  Domestic violence is not itself an exception to return, but rather can be thought of within the broader context of the exceptions and is relevant to a court’s consideration of whether a petition for return should be granted, which is the subject of much of this guide.

The purpose of this guide is to address Hague Convention cases involving allegations of domestic violence.  Specifically, it focuses on petitions filed in the United States for the return of a child located in the United States (referred to as “incoming cases”), in which the respondent (the “taking” or “abducting” parent) alleges abuse by the petitioner (the left-behind parent).  The focus on domestic violence and providing assistance to battered respondents is critical for a number of reasons.  First, the Convention is founded, at least in part, on the principles that international child abduction is harmful to the abducted child and that an abducting parent should not be able to gain a legal advantage in a custody matter by taking the child to a foreign country.  Accordingly, the Convention was designed to facilitate the prompt return of a child wrongfully removed from his or her country of habitual residence.  Consequently, Contracting States have developed resources geared towards the prompt return of children wrongfully removed from their country of habitual residence, and as a result there are generally more resources worldwide to assist left-behind parents than to assist taking parents.  In some cases, however, the taking parent is fleeing domestic abuse, seeking safety in another country for her children and herself.  In these cases, the removal of a child from the foreign country may be less harmful than the abusive environment from which the child was taken.  In these situations, the fleeing parent has left the foreign country seeking safety, but not a legal advantage.  Nonetheless, resources for respondents may be limited.

Second, unlike federal legislation to prevent child abduction which provides an explicit defense for parents fleeing domestic violence, both the Hague Convention and ICARA are silent as to domestic violence.  A parent who flees across international borders due to domestic violence often does so for reasons involving her own safety and security and the safety and security of her children.  Instead, they frequently find themselves faced with a court battle under the Hague Convention in which they are viewed as an “abductor,” in a court that may not understand the dynamics of domestic violence or how those dynamics are relevant to the safety of the parties’ children and the exceptions to return under the Convention.

This guide seeks to assist attorneys and domestic violence victim advocates both by outlining the law and jurisprudence central to a Hague Convention case in the United States and by highlighting the issues specific to cases alleging domestic violence perpetrated by the left-behind parent.  Additionally the guide covers the intersection of domestic violence and the Hague Convention.